Conservatorships and Conservatorship Litigation

What happens if you
become mentally or physically incapacitated? Who will manage your financial
affairs, including paying your bills, running your business, sign your tax
return and pay your income taxes? Who will confer with your doctors on your
medical care and treatment? Who will make medical decisions on your behalf when
you are unable to express your wishes? These are all questions which are
covered in a comprehensive, well-prepared estate plan, but what happens if
incapacity strikes you before you’ve executed your estate planning documents?

Unfortunately, these are
questions we often have to confront. When tragedy strikes and a person becomes
incapacitated as a result of an accident, stroke, or criminal act by another
person, the incapacitated person lacks the capacity to create a legal document
or ability to create a valid estate plan. Therefore, the only alternative to
ensure the well-being of the incapacitated person and to protect and manage the
person’s finances may be to seek a conservatorship over the person and/or the
person’s estate.

Conservatorships Defined

A conservatorship is
established when a judge determines that a person (called the “conservatee”)
can no longer oversee their finances or are deemed unable to take care of
themselves. The judge will then appoint another person or an organization
(called the “conservator”) to handle the conservatee’s care and or finances.
There are two types of conservatorships: 1) of the person; and 2) of the
estate.

Conservator of the Person:A conservator of the person arranges
for the conservatee’s care an protection, decides where the conservatee will
live, and makes decisions regarding aspects of the conservatee’s life like
their healthcare, food, clothing, and recreation.

Conservatee of the
Estate: A conservatee of the estate oversees and handles the conservatee’s
finances. The conservator o the estate takes an inventory of the conservatee’s
asset and ensures that the conservatee’s bills are paid, taxes are filed and
overall ensures that the conservatee’s financial needs are met and financial
records are organized. It is permissible and commo that the conservator of the
estate I also the same individual/organization as the conservator of the
person.

Conservatorships can be
limited or permanent. A temporary conservatorship may be appropriate for a
limited period, usually 30 – 90 days, to handle a temporary or emergency
situation. For example, an individual may develop a mental or physical
condition which renders him unable to take care of himself at home. A temporary
conservator may be appointed to make arrangements for caregivers, in home
health care, or movement to a care facility. If the conservatee recovers
sufficiently, the temporary conservatorship can be terminated or, if needed, a
permanent conservator may be appointed.

Conservatee’s Rights

It is a common
misconception that the conservatee loses all rights upon the court appointment
of a conservatorship. The conservatee does however retain the following rights:

To make or change their will or estate
plan (unless the judge grants this right to a conservator)

To be represented by a lawyer

To receive notice of all hearings related
to the conservatorship

To get married

To receive mail

To control their own spending money
(determined by judge)

To ask the judge to change conservator

To ask the judge to end the
conservatorship

To vote (unless the judge determines they
are not able to do so)

To make their own healthcare decisions
(unless the judge determines they are not able to do so)

Establishing a Conservatorship

The first step in
establishing a conservatorship is to file a Petition for Conservatorship. A
Petition for Conservatorship can be filed by a friend, relative, professional
conservator, nonprofit agency, or public official. The proposed Conservator
must be bondable or trustworthy. Throughout the entire process of
conservatorship for an individual, the conservator needs to have an attorney
represent them. The person or entity filing the petition for conservatorship
must also state alternative methods for achieving the equivalent of a
conservatorship and why these other methods are less appropriate or unsuitable.
Alternate remedies include some sort of assistance accepted voluntarily by the
individual, or other legal remedies such as limited, special, or general power
of attorney, creation of a trust, or filing out an advance healthcare
directive.

The second step, once the
petition is filed with the court, is that the court will appoint a court
investigator to interview the proposed conservatee and report the
investigator’s findings to the court. The court will then set a hearing on the
petition where the judge will determine whether to grant the petition for
conservatorship. If a conservatorship is warranted the judge will establish the
duties granted to the conservator.

If one is to become a
conservator of the estate, they must file an Inventory and Appraisal within 90
days of becoming conservator and an annual accounting 1 year after becoming
conservator.

When a Conservatorship Terminates

A conservatorship
terminates on the death of the conservatee, when a judge terminates the
conservatorship because it is no longer needed, or if a judge appoints a
different conservator. If the conservatorship is being terminated because of death,
the conservator will pay any expenses of the conservatee’s illness and is
responsible for the preservation of the conservatee’s estate until it is
delivered to the personal representative of the estate or otherwise lawfully
disturbed.
You will need the
expertise of an experienced conservatorship attorney. Rehmani & Associates
hs years of experience in this practice area.
Our firm has handled numerous conservator matters from Limited Conservatorships
for disabled adults, to conservatorships for the elderly, to fiduciary
accountings, as well as contested
conservatorship matters that head to litigation. We are here to help you.